A Lawyer’s Random Musings – Federal Facilities

A Lawyer’s Random Musings on Intellectual Property and Other Legal Stuff, Mainly for Visual Artists and Occasionally for Other Creative People.

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FelixMittermeier / Pixabay

Question: ‘Is it necessary to get the person’s permission if posting an image taken by a federal facility and published?’

Answer: The usual answer is no. But you know how it goes, there are always exceptions.

THE BASIC RULE IS “WORK OF THE UNITED STATES GOVERNMENT” IS IN THE PUBLIC DOMAIN

The Copyright Act states, “A “work of the United States Government” is a work prepared by an officer or employee of the United States Government as part of that person’s official duties.”

If the image was not prepared by a U.S. Government employee, or if preparing the image was outside the official duties (done at home, as a personal project, for example), then it might be copyrighted. This is loosely similar to the “work made for hire” provisions elsewhere in the Copyright Act that apply to the private sector: If your employer hires you to do the photography, the employer owns the copyright.

Here is the exact language of the Copyright Act that says U.S. government images are not copyrighted, along with, of course, an exception:

“105. Subject matter of copyright: United States Government works37
Copyright protection under this title is not available for any work of the United States Government, but the United States Government is not precluded from receiving and holding copyrights transferred to it by assignment, bequest, or otherwise.”

THE GOVERNMENT CAN OWN IMAGES THAT WERE CREATED BY PEOPLE WHO ARE NOT GOVERNMENT EMPLOYEES. THESE IMAGES MAY NOT BE PUBLIC DOMAIN.

Copyrights are property. If I own property, it is possible for me to sell it, give it, bequeath it, etc., to another owner. The recipient might possibly be the U.S. Government. If so, the image (or other copyrighted work) might still be copyrighted.

“Transfer of Copyright Ownership
Any or all of the copyright owner’s exclusive rights, or parts of those rights, can be transferred. The transfer, however, generally must be made in writing and signed by the owner of the rights conveyed or the owner’s authorized agent. Transferring a right on a nonexclusive basis does not require a written agreement. You can bequeath a copyright by will or pass it along as personal property under applicable state laws of intestate succession. It can also be conveyed by operation of law. You can “record” a transfer of copyright ownership with the Copyright Office through its Office of Public Records and Repositories. Although recordation is not required to make a valid transfer between parties, it does provide certain legal advantages. For more information, see Recordation of Transfers and Other Documents (Circular 12).” Source: Circular 1 Copyright Basics

To provide more detail:
“A work of the United States government, as defined by the United States copyright law, is “a work prepared by an officer or employee” of the federal government “as part of that person’s official duties.”[1] In general, under section 105 of the Copyright Act,[2] such works are not entitled to domestic copyright protection under U.S. law and are therefore in the public domain.

This act only applies to U.S. domestic copyright as that is the extent of U.S. federal law. The U.S. government asserts that it can still hold the copyright to those works in other countries.[3][4]

Publication of an otherwise protected work by the U.S. government does not put that work in the public domain. For example, government publications may include works copyrighted by a contractor or grantee; copyrighted material assigned to the U.S. Government; or copyrighted information from other sources.[5] “ Source: Wickipedia, “Copyright status of work by the U.S. Government

WORK CREATED BY GOVERNMENT CONTRACTORS: READ THE CONTRACT
Not all government work is done by government employees. Sometimes the work is done by contractors. The Federal Acquisition Regulation (FAR), which applies to most civilian agencies, and the Defense Federal Acquisition Regulation (DFAR), which applies to most of the military, govern how federal government contracts work.

If contractor employees do the work, it matters which clauses are in the specific contract under which the employees are working. You have to read the contract to know for sure how the intellectual property rights (IP) rights are addressed. You can get copies of government contracts through the Freedom of Information Act (FOIA), but it takes a long time and you usually have to pay some or all of the costs of associated with government employees working on responding to the FOIA request instead of doing their regular work.

Again, this Wickipedia article provides a clear explanation of how the government contracting end of things works:

“Works produced by contractors[edit]

“Unlike works of the U.S. government, works produced by contractors under government contracts are protected under U.S. copyright law[disputed (for: only true at times) – discuss]. The holdership of the copyright depends on the terms of the contract and the type of work undertaken. Contract terms and conditions vary between agencies; contracts to NASA and the military may differ significantly from civilian agency contracts.[11]

Civilian agencies and NASA are guided by the Federal Acquisition Regulations (FAR). There are a number of FAR provisions that can affect the ownership of the copyright. FAR Subpart 27.4—Rights in Data and Copyright provides copyright guidance for the civilian agencies and NASA. Additionally, some agencies may have their own FAR Supplements that they follow.

Under the FAR general data rights clause (FAR 52.227-14), the government has unlimited rights in all data first produced in performance of or delivered under a contract, unless the contractor asserts a claim to copyright or the contract provides otherwise. Unless provided otherwise by an Agency FAR Supplement, a contractor may assert claim to copyright in scientific and technical articles based on or containing data first produced in the performance of a contract and published in academic, technical or professional journals, symposia proceedings, or the like. The express written permission of the Contracting Officer is required before the contractor may assert or enforce the copyright in all other works first produced in the performance of a contract. However, if a contract includes Alternate IV of the clause, the Contracting Officer’s approval is not required to assert claim to copyright. Whenever the contractor asserts claim to copyright in works other than computer software, the government, and others acting on its behalf, are granted a license to reproduce, prepare derivative works, distribute, perform and display the copyrighted work. For computer software produced under FAR contract, the scope of the government’s license does include the right to distribute to the public,[12] but for “commercial off the shelf software”, the government typically obtains no better license than would any other customer.” Source: Wickipedia, “Copyright status of work by the U.S. Government”

For the full text of the clause at FAR 52.227-14 – Rights in Data – General: https://www.law.cornell.edu/cfr/text/48/52.227-14

As you can see, FAR 52.227-14 focuses on software and computer-related kinds of data. Data can be information in a lot of forms, including photos and other images, so this clause can cover the rights to pictorial data, as well.

Government employees and contractor employees are just people. They come with a wide range of skills and experience. Sometimes they don’t know a lot, or anything, about copyrights or trademarks. So, just like anyone else, it is possible for these employees to be working on a project and grab images off the internet that seem ok to use, but in fact are some artist or photographer’s copyrighted work. You can’t assume that every image you see in a government publication is copyright-free, simply because you see it used in a government publication.

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DEPARTMENT OF DEFENSE (DOD) and IP MANAGEMENT LAWS
Sometimes there are laws requiring the government to manage intellectual property in particular ways. For example, 10 U.S. Code § 2322, Management of intellectual property matters within the Department of Defense, provides for coordination across the military departments to enable consistency for acquiring or licensing intellectual property. It also, among other things, requires DOD to establish a cadre of personnel who are experts in intellectual property matters.

GOVERNMENT AGENCIES and OTHER GOVERNMENT ENTITIES: USING THEIR IMAGES or OTHER MATERIALS

Most U.S. government agencies have websites that post information providing information about using their images and other intellectual property. They usually have policies that deal with the fact that the government can’t be completely sure that every single image they use or provide to the public is guaranteed copyright-free. They usually make it the user’s responsibility to figure out the copyright status. As a taxpayer, I am fine with that approach, because I don’t really want to pay for the enormous amount of staff training and research that would go into making sure every image that an agency has is copyright-free.

If you plan to use a government image, it would be wise to check the agency or other entity’s website. Government agencies do protect their various logos and some other types of images by trademarking them. A small sampling of various government entities’ approaches to dealing with copyright, trademark, or other intellectual property follows.

U.S. POSTAL SERVICE (USPS)

“What does the Postal Service own?
• USPS Corporate Signature
• Priority Mail and Express Mail logos
• USPS Stamp Images
• Letter Carrier Uniform
• Blue Collection Box
• Post Office Murals and Sculptures
• USPS Photos and Historical Materials
• Copyrighted Print and Web Materials
• Other Trademarks and Images

Rights and Permissions Overview

The U.S. Postal Service Office of Rights and Permissions reviews requests for the one-time, limited use of USPS trademarks and copyrighted materials. Find links to further information on specific uses and some basic information on the most common uses of these properties.”

Source: Rights and Permissions Overview https://about.usps.com/doing-business/rights-permissions/welcome.htm

The Postal Service conducts various contests for artists to provide art for postage stamps. Sometimes photographers, or other artists, submit images to the stamp art contests that contain copyrighted elements, and the Postal Service gets sued. If you are going to submit your art to a postage stamp contest, it would be a good idea to make sure you are not using someone else’s copyrighted art in your design. Below are two examples, one where a photograph of a copyrighted replica of the Statue of Liberty was photographed in a Las Vegas hotel room (who would guess that it wasn’t a photo of the famous Lady Liberty statue in New York?) , the other where the copyrighted Korean War Memorial was photographed. Yes, public art can have copyrights attached. In both cases, the sculptors won their cases for copyright infringement.
US Postal Service Ordered to Pay Artists $3.5M for Copyright Infringement. https://hyperallergic.com/450046/us-postal-service-copyright-infringement-robert-davidson/
Korean War Memorial Stamp Infringed Copyright
https://www.balough.com/korean-war-memorial-stamp-infringed-copyright/#.W3YPN-hKiUk

DEPARTMENT OF INTERIOR (DOI)

The Dept. of Interior includes the National Park Service, the U.S. Geological Survey, and other federal agencies that may have images of natural areas, maps, etc., that could be attractive to artists as possible source materials for derivative works. DOI has a website which addresses the possibility that their materials may not be public domain, and specifically notes that DOI does not get involved in researching or confirming the copyright status of their materials:
“Copyright
Generally, materials produced by federal agencies are in the public domain and may be reproduced without permission. However, not all materials appearing on this web site are in the public domain. Some materials have been donated or obtained from individuals or organizations and may be subject to restrictions on use.
You may consult our staff for details on specific items. We are aware of use restrictions applicable to some items or collections, but we cannot confirm copyright status for any item. We recommend that you contact the United States Copyright Office at The Library of Congress to search currently copyrighted materials.
Please note that because we cannot guarantee the status of specific items, you use materials found in our holdings at your own risk.” Source: Department of Interior website on copyright: https://www.doi.gov/copyright

NATIONAL PARK SERVICE (NPS) ARROWHEAD:

The distinctive NPS arrowhead is an example of a U.S. Government image that is protected by trademark.

“The Arrowhead Symbol is the registered service mark of the National Park Service (NPS), protected by the trademark laws of the United States (see the Lanham Act, 15 U.S.C. §§1051–1141n, in particular §1053). Its use is further governed by part 11 of title 36 of the Code of Federal Regulations (36 CFR). Section 11.3 of 36 CFR allows use of the arrowhead only as authorized by the Director of the NPS, and then only for “uses that will contribute to purposes of education and conservation as they relate to the program of the [NPS]. Additional protections for the arrowhead are found in section 701 of title 18 of the United States Code which specifically prohibits the unauthorized manufacture, sale, or possession of “any badge, identification card, or other insignia ” of any department or agency of the United States, and forbids the manufacture of any “engraving, photograph, print or impression of any such badge, identification card, or other insignia, or any colorable imitation thereof.” “
Source: https://www.nps.gov/subjects/partnerships/arrowhead-requests.htm

NATIONAL ARCHIVES and RECORDS ADMINISTRATION (NARA)

The National Archives is the repository for many kinds of U.S. Government records and important historic documents, including photographs and images. Their website has a Frequently Asked Questions link that addresses issues regarding use of their images.

“Copyright
May I reproduce images from your website?
The vast majority of the digital images in the National Archives Catalog are in the public domain. Therefore, no written permission is required to use them. We would appreciate your crediting the National Archives and Records Administration as the original source. For the few images that remain copyrighted, please read the instructions noted in the “Use Restriction(s)” field of each catalog record.
Please note that a few images on other areas of our website have been obtained from other organizations and that these are always credited. Permission to use these photographs should be obtained directly from those organizations.
May I reproduce other NARA records?
In general, all government records are in the public domain and may be freely used. We do have some donated or other materials that might be copyrighted. If you have questions about the records you are interested in, speak to the archivist or reference staff that handles those records.

Free-Photos / Pixabay

Can I get a signed permission form from NARA to use materials?
NARA as a policy does not sign documents stating that particular records are not copyrighted because government records are in the public domain. For other materials, it is the user’s responsibility to determine copyright.” Source: https://www.archives.gov/faqs

NATIONAL AIR AND SPACE ADMINISTRATION (NASA)

The photos we have from telescopes, satellites, and the various cameras we have sent into space are amazing. It is not difficult to understand why artists love to use these as inspiration for their own art. The actual NASA images are in the public domain, and usually other NASA content is in the public domain. However, not all of it is, NASA sometimes does use copyrighted material, by permission, on its website or elsewhere.
Source: https://www.nasa.gov/multimedia/guidelines/index.html

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Also, before we start selling everything space, it would be a good idea to be aware that merchandizing of NASA-related items is regulated. The regulations restricting merchandizing are mainly trademark-related. See their website for details:

“NASA Regulations for Merchandising Requests
Strict laws and regulations govern NASA policy regarding merchandising requests for producing NASA-related merchandise. NASA-related merchandise is any product which features NASA identifiers, emblems, devices or imagery. Companies interested in producing NASA-related merchandise must notify NASA’s Office of Communications at NASA Headquarters in writing by sending e-mail to Bert Ulrich (bert.ulrich@nasa.gov). Requests should describe the intended use of NASA identifiers, emblems, devices, or imagery on the product. If possible, detailed layouts or sketches of the product should be included. When all legal and policy requirements have been met, NASA will send the merchandiser an approval by e-mail.” The website provides a long list of details on merchandizing.”
Source: https://www.nasa.gov/audience/formedia/features/Merchandising_Guidelines.html

Not all space images are created by NASA. There are other people out there who take photos of space. They range from amateur astronomers who take photos of the sky through their telescopes (the amateur astronomer/photographer would own the copyrights to their space photos), to Google Earth’s satellite images. For information on use of Google’s maps, earth, and street view pictures, see their website (they restrict commercial uses): https://www.google.com/permissions/geoguidelines/

For further reading, see this article provided by The Planetary Society on use of space images: http://www.planetary.org/explore/space-topics/space-imaging/copyright.html

NATIONAL GALLERY OF ART (NGA)

NGA provides a large number of images that are open to the public for use, through its “Open Access” digital images.

“OPEN ACCESS POLICY FOR IMAGES OF WORKS OF ART PRESUMED IN THE PUBLIC DOMAIN
With the launch of NGA Images, the National Gallery of Art implements an open access policy for digital images of works of art that the Gallery believes to be in the public domain. Images of these works are now available free of charge for any use, commercial or non-commercial. Users do not need to contact the Gallery for authorization to use these images. They are available for download at the NGA Images website (images.nga.gov). See Policy Details below for specific instructions and notes for users.

POLICY DETAILS

Users may download— free of charge and without seeking authorization from the Gallery— any image of a work in the Gallery’s collection that the Gallery believes is in the public domain and is free of other known restrictions.

If an image of a work is not currently available under open access, it is for one or more of the following reasons:
• the work is still under copyright, or the copyright status is unclear
• privacy or publicity issues exist
• the work is not fully owned by the Gallery
• contractual restrictions specified by the artist or donor preclude open access
• the work has not yet been photographed or the image quality standards of the existing photographs do not conform to Gallery criteria”

Source: https://images.nga.gov/en/page/openaccess.html

STATE LAW

Not all government works are in the public domain. It matters, very much, which government we’re talking about.

“The U.S. Copyright Office gives guidance that “Works (other than edicts of government) prepared by officers or employees of any government (except the U.S. Government) including State, local, or foreign governments, are subject to registration if they are otherwise copyrightable.”
Compendium II: Copyright Office Practices, Chapter 200, § 206.03. As of 1998 supplement.
Source: State government – copyrights https://en.wikipedia.org/wiki/Copyright_status_of_work_by_U.S._subnational_governments

The various state laws are literally all over the map. Harvard provides a website where you can pull up a map of the United States, and click on the state whose works you want to copy. That state’s laws regarding whether government works are copyrighted, etc. will pop up.
http://copyright.lib.harvard.edu/states/

SUMMARY

U.S. Government works, works created by government employees within the scope of their duties, are normally in the public domain. There is a treasure trove wonderful freely available material that anyone can use to make art. However, there are many exceptions to that rule, for example for some works created by contractor employees, copyrighted material that the government owns but which came from sources outside the government, or with regard to trademarked materials. Therefore, it is not safe to assume that everything government is public domain, and to grab images off the internet or other government publications and use them without further inquiry.

A best practice first step would be to check the government agency’s website to find out what the policies, regulations, or other common issues are for that agency’s images and other IP. If what you want to copy or use is not clearly public domain, then you may have to do further research to determine the copyright (or other IP) status of the work.

Government agencies, other than the Copyright Office, do not normally accept responsibility for providing verification of copyright status. Instead, responsibility for making sure you’re not using other people’s IP lies with the person using the images or other material.
Finally, there is no consistency regarding whether materials provided by state or other non-federal government entities are copyrighted or public domain. Items that would be in the public domain if the U.S. government created them may not be in the public domain if a state government created them.

OpenClipart-Vectors / Pixabay

Sources and Further Reading:

Additional reading:
Article: Protecting Government Works: The copyright Issue. Manz, Zelenka, Wittig, and Smith. http://www.dtic.mil/dtic/tr/fulltext/u2/a487919.pdf

https://www.copyright.gov/title17/92chap1.html
https://www.copyright.gov/title17/92chap5.html
https://www.copyright.gov/circs/circ01.pdf
https://en.wikipedia.org/wiki/Copyright_status_of_work_by_the_U.S._government
https://www.law.cornell.edu/cfr/text/48/52.227-14

Can State Governments Own Rights in Copyright?


http://www.dtic.mil/dtic/tr/fulltext/u2/a487919.pdf
http://copyright.lib.harvard.edu/states/
https://www.law.cornell.edu/supremecourt/text/128/244
https://en.wikipedia.org/wiki/Copyright_status_of_work_by_U.S._subnational_governments
https://hyperallergic.com/450046/us-postal-service-copyright-infringement-robert-davidson/
https://www.balough.com/korean-war-memorial-stamp-infringed-copyright/#.W3YPN-hKiUk
https://about.usps.com/doing-business/rights-permissions/welcome.htm
https://www.nps.gov/subjects/partnerships/arrowhead-requests.htm
https://www.nasa.gov/multimedia/guidelines/index.html
https://www.nasa.gov/audience/formedia/features/Merchandising_Guidelines.html
https://www.google.com/permissions/geoguidelines/
http://www.planetary.org/explore/space-topics/space-imaging/copyright.html
https://images.nga.gov/en/page/openaccess.html
https://www.copyrightlaws.com/copyright-laws-in-u-s-government-works/



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DISCLAIMER

Disclaimer: This column is intended to provide entertainment, and basic general information about the law. It is not legal advice. No attorney-client relationship exists or is created between the author and the reader or any other parties. This information is not a substitute for legal advice from your attorney. If you think you may need legal advice or if you are engaged in or contemplating litigation, you are encouraged to seek the services of a licensed attorney in your jurisdiction.

The author makes no attempt to protect from public disclosure any attorney-client privileged or other information provided to her. Your attorney may have a more difficult time representing you effectively if you have disclosed attorney-client privileged information, so please don’t be stupid and send to the author information that you don’t want your adversaries to know. All of the ideas, opinions, errors, random thoughts, digressions and everything else she wrote are her own, and are not to be blamed on anyone other than the author.

Copyright Cheryl Emerson Adams, all rights reserved.

For more free basic information on U.S. intellectual property law, see the following websites:
Copyright: Copyright Gov
Patent and Trademark: USPTO Gov

Cheryl Adams

Cheryl Adams

Artist at Cheryl Adams
Cheryl Adams, J.D. Law, is licensed to practice law in Maryland, U.S.A.

She attempts to provide entertainment and basic general information about U.S. law.Enjoy.

To learn more about her: Getting To Know Cheryl Adams
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Ludwig Keck
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A few years back I was preparing a book and a NASA photo showing the inside of a spacecraft and several astronauts seemed a very appropriate illustration. I contacted NASA for permission. Since the individuals were prominent and very recognizable I was advised that I would have to obtain a release from each astronaut individually, and no they did not assist me in contacting them. For this case there was more than the image copyright of concern and that might be the case with many images on government websites.

Ludwig Keck
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Thank you Cheryl,

Your information is most helpful. I appreciate your thorough, interesting, and valuable posts.